APPEAL by the defendant, The AEtna Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 27th day of May, 1910, upon the verdict of a jury, and also from an order entered in said clerk's office on the 27th day of May, 1910, denying the defendant's motion for a new trial made upon the minutes.
The plaintiff, a domestic corporation, has recovered a judgment upon an employers' liability insurance policy issued to it by the defendant, a foreign corporation, on the 5th of July, 1906, and which, by its terms, ran for three years from its date and at an annual premium of forty-two dollars and ninety cents. In May, 1908, a boy named Krause, under sixteen years of age, while in the service of the assured, was injured on a printing press and recovered a judgment for the injuries suffered by him and the recovery was based upon the negligence of the employer in hiring him in violation of the Labor Law.
The plaintiff paid the judgment and has recovered the amount of the same in this action. The defendant contested the claim, alleging that by the express terms of its contract with the plaintiff it is not liable.
Charles E. Spencer, for the appellant.
G. W. O'Brien and Albert J. Oot, for the respondent.
By the policy in controversy the defendant insured the plaintiff 'against loss or expense arising or resulting from claims
upon the assured for damages on account of bodily injuries or death accidentally suffered, by reason of the operation of the trade or business described herein, by any employee or employees of the Assured while within the factory, shop, or yard described herein.' The policy provided that 'this insurance is subject to the following conditions:' In the subjoined paragraph 'A,' the liability of the company is limited to $5,000 for injuries or death of 'one person' in the assured's employ. Under the head of 'Exclusions' it is provided as follows: 'B. This policy does not cover loss or expense arising on account of or resulting from injuries or death to, or if caused by (1) any person employed in violation of law, or any child under the age of fourteen (14) years where there is no legal restriction as to age of employment.'
The injured employee, Krause, in his complaint against the manufacturing company charged that it was negligent in employing him when only fifteen years of age without the employment certificate prescribed by section 71 et seq. of the Labor Law (Gen. Laws, chap. 32 [Laws of 1897, chap. 415], § 71 et seq., as amd. by Laws of 1903, chap. 184, and Laws of of 1907, chap. 291); that he was set to work on a dangerous machine when out of repair and was negligently instructed in its operation.
There was a conflict in the testimony as to the age of Krause and as to whether if in fact he was under sixteen years of age the employer was negligent in employing him for the reason it claimed it had been informed at the time of the commencement of the service by Krause and his father that the boy was sixteen years of age. The other grounds of negligence alleged were not submitted to the jury. The two issues for determination were whether Krause was in fact under sixteen years of age, and, second, assuming that fact and assuming that the machine on which he was employed was dangerous, did the defendant exercise due care in ascertaining the truth of the statements made to it as to his age?
The court summed up its discussion of the two issues in this language: 'That is substantially the case which you have to determine. First, was the boy as a matter of fact, at the time of this ...